Mata Vaishno Finsec Services v. Siraj Khan

1. Leave granted. The Registry is directed to register the petitions as appeals.

2. Thesetwo appeals have been preferred bythe appellantimpugning Page 1 of[4] Crl.L.P. Nos.426 cfe 435 of2016 2016:DHC:8903 the order dated 03.05.2014 whereby the two complaint cases filed under Section 138 ofNegotiable Instrument Act read with Section 420 IPG have been dismissed for non-prosecution and respondent Siraj Khan has been acquitted ofthe charges levelled againsthim.

3. Notice was issued to the respondent Siraj Khan several times but the process received back unserved with the reportthat he is notresiding atthe given address.

4. I have heard learned counsel for the appellant and carefully gone through the record.

5. The two complaint cases filed by the appellant under Section 138 of Negotiable Instrument Actread with Section 420IPG have been dismissed by the learned MM by passingthe identical orders dated 03.05.2014 which read as under; '03.05.2014 Present: Nonefor the complainant. Accused in person. Be awaited. 12.30pm Accusedin person. Be awaited. Sd/- MM/Dwarka 03.05.2014 Sd/- MM/Dwarka 2.00pm Accused inperson. Crl.L.P. Nos.426c& 435of2016 Page 2of[4] Despite several calls since morning, none has appeared on behalfofthe complainant. No intimation on behalfofthe complainant has also been received. Keeping in view thefact that none has appeared on behalfof the complainant, accordingly,present complaint case is dismissedfor nonprosecution. Accusedstands acquitted ofthe charges levelled against him. His bail bond stands cancelled and surety stands discharged. Casefde be consigned to recordroom. Sd/- MM/Dwarka

6. Mr.Madhu Sudan Bhayana, Advocate for the appellant has submitted thathe was diligently prosecuting the complaintcases rightfrom the stage of their institution and it was due to wrong noting ofthe date in his diary that he could not appear before the learned MM on 03.05.2014 which resulted into dismissal of both the complaint cases for non-prosecution as well acquittal ofthe respondent. Alongwith the appeal,the learned counsel for the appellant has also annexed with the petition the photocopy ofhis diary th for the relevant dates of hearing fixed before the learned MM i.e. for 13 March,2014, 3'''^ May,2014 and 5"" May,2014. Learned counsel for the appellantsubmits that in these cases the date has been wrongly noted as 5^' May,2014 instead of 3'"'^ May,2014 and due to this reason he could not appear before the learned MM on 3'^'' May,2014. It was only on 5**^ May, 2014 when he alongwith the complainant appeared before the learned Trial Court,he came to know about the dismissal ofboth the complaint cases for non-prosecution and acquittaloftherespondenton 3'"'^ May,2014.

7. Learned counselforthe appellanthas also produced his original diary Crl.L.P. Nos.426&435of2016 Page 3of[4] which has been perused.He has prayed for setting aside the order dated B*" May,2014 and restoration ofthe complaint cases as his non-appearance on the relevant date wasnotintentional but dueto wrong noting ofthe date.

8. Considering the facts and circumstances ofthe case and that it was due to wrong noting of the date of hearing that the complainant or his counsel could not appear before the learned Trial Court on 3 May,2014 when both the complaint cases were dismissed for non-prosecution, the litigantshould notbe madeto sufferforthelapse onthe partofthe counsel. Hence,the order dated B"""May,2014 passed in boththe complaintcases are set aside. The Complaint Cases restored to their original numbers. The parties aredirectedto appearbeforetheconcerned Courton2H^April,2016.

9. Both the appeals are allowed.

10. A copy ofthis order be sent to the concerned Court for information and compliance. As prayed,copy ofthe order be given dastito learned counselforthe appellant. Crl.M.A.No.4615/2016 in Crl.L.P.No.426/2014 Crl.M.A.No.4614/2016in Crl.L.P.No.435/2014 Dismissed as infructuous. >RATIBHA RANI,J. APRIL 04,2016 'st' Crl.L.P.Nos.426&435of2016 Toge4of[4]